entitled to rely upon directions from the Plan Committee and upon this Court's Order of July 15, 1985. While not alleging that they are not fiduciaries under ERISA, the Plan Committee members join with Mercantile in challenging Counts 7 through 9 as not ripe for adjudication.
A. Fiduciary Status of Mercantile Under ERISA
As the controlling statute, ERISA provides the guidelines for determining who is a fiduciary with respect to an employee benefit plan. ERISA expressly limits fiduciary status to those persons who either exercise "discretionary authority or . . . control" over the assets or administration of a plan, or "render  investment advice for a fee. . . ." ERISA § 3(21), 29 U.S.C. § 1002(21). Those persons acting as trustees who perform wholly nondiscretionary functions fall outside the class of actors upon whom Congress sought to impose fiduciary duties. See, e.g., O'Toole v. Arlington Trust Co., 681 F.2d 94, 96 (1st Cir. 1982); Robbins v. First American Bank of Virginia, 514 F. Supp. 1183, 1189-91 (N.D. Ill. 1981); Hibernia Bank v. Int'l Bhd. of Teamsters, 411 F. Supp. 478, 489-90 (N.D. Cal. 1976).
Plaintiffs allege no facts that would support a threshold determination of fiduciary status as to Mercantile.
What allegations they do make already presuppose the existence of such status. In this connection, for example, plaintiffs charge that, in approving the terms of the 1984 sale, Mercantile violated the trust it held on behalf of the plaintiffs.
Yet no violation of trust could have taken place unless there arose a trust relationship at the outset. Neither did Mercantile stand in a fiduciary relation to the plaintiffs while they were still employed, nor after they left their employment. If Mercantile can be said to be a fiduciary at all, it is such with respect to the current Plan participants,
who benefited from the 1984 sale, not with respect to former participants who terminated their relationship with the magazine well before the sale. Consequently, if any class of individuals has standing to object to the terms of the sale, it is the current, not former, beneficiaries of the Plan.
Both Mercantile and the Plan Committee members contend that the issues raised in Counts 7 through 9 of the amended complaint are not yet justiciable. The defendants are correct; it is not within the purview of federal courts to decide controversies based on contingencies that have yet to ripen into actualities. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 689, 69 L. Ed. 2d 918, 101 S. Ct. 2972 (1981); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 304, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Metzenbaum v. Federal Energy Reg. Comm'n, 219 U.S. App. D.C. 57, 675 F.2d 1282, 1289-90 (D.C. Cir. 1982); American Internat'l Group, Inc. v. Islamic Republic of Iran, 211 U.S. App. D.C. 468, 657 F.2d 430 (D.C. Cir. 1981); 13A Wright & Miller, Federal Practice and Procedure: Jurisdiction 2d §§ 3532, 3532.2 (1984); C. Wright, Law of Federal Courts § 12 (4th ed. 1983).
Plaintiffs' claim against Mercantile and the Plan Committee members is not that they were involved in the underlying transactions that initially gave rise to this and the Foltz suits, but that these defendants have acted so as to lessen the amount of funds available to satisfy a possible judgment to be awarded either to the Foltz plaintiffs or to those in this suit. For such a claim to state a cognizable cause of action, the distribution occurring in July 1985 must have been itself wrongful. It is not enough that plaintiffs prefer to look to more or deeper pockets than those currently within their reach. Absent some wrongdoing on their part, there is no reason why either of these defendants should be joined in this suit merely to satisfy some speculative shortfall in the recovery available. To this extent, not only are the claims against Mercantile and the Plan Committee members not ripe, but it may be improbable that they will ever lie against those defendants.
Finally, in response to plaintiffs' "apodictic" assertion that Mercantile, if not the Plan Committee members, is a "necessary" party to the suit, we note that not even Mercantile fits into that category of parties within the meaning of Rule 19, Fed. R. Civ. P. There is no reason why "complete relief cannot be accorded among those already parties" in Mercantile's absence. At most Mercantile is a stakeholder and, as such, has been enjoined from distributing monies representing the measure of plaintiffs' likely recovery. There is simply no need to make Mercantile a party-defendant.
For the reasons outlined above, it is this 26th day of November, 1985,
That defendants' motions are granted and that Counts 7 through 9 of the Amended Complaint are dismissed without prejudice as to Mercantile and defendants Gretchen Langston, James Glassman, John Mashek and Neil Rice.